FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 22, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 137
The State of North Dakota, by and
through the North Dakota Department
of Human Services, Petitioner
v.
The Honorable Robin A. Schmidt,
District Court Judge, Northwest Judicial
District, and Anthony Dwane Boldt, Jr., Respondents
No. 20210156
Petition for Supervisory Writ.
PETITION FOR SUPERVISORY WRIT GRANTED.
Opinion of the Court by Tufte, Justice.
Andrew Moraghan, Assistant Attorney General, Office of Attorney General,
Bismarck, N.D., for petitioner.
Christopher M. Redmann, Mandan, N.D., for respondent Anthony Boldt, Jr.
State v. Schmidt
No. 20210156
Tufte, Justice.
[¶1] The State petitioned this Court to exercise its original jurisdiction and
issue a writ of supervision directing the district court to vacate certain orders
allowing representation during a presentence investigation (PSI) related
evaluation. The State argues the defendant has no Sixth Amendment right to
have counsel present. We exercise our supervisory jurisdiction and vacate
those portions of the district court’s orders which direct the Department of
Human Services (the Department) to permit Anthony Boldt’s counsel to be
present and advise Boldt during psycho-sexual evaluation.
I
[¶2] Boldt pled guilty to three counts of incest. The district court issued an
order for presentence investigation and sentencing hearing notice which
scheduled sentencing for July 7, 2021. The court also directed “that a Pre-
sentence Report, including a psycho-sexual evaluation be prepared in this
matter, prior to sentencing, by the Department of Parole and Probation.” The
Department of Human Services received a referral from the Department of
Corrections and Rehabilitation triggering the secondary process of a risk
assessment to be conducted during a presentence investigation.
[¶3] The evaluation was scheduled for May 12, 2021. Defense counsel was
informed the Department would not allow counsel to be present during the
evaluation. Following a May 10, 2021 status conference, the district court
issued an order regarding the case, stating, “It is hereby ordered that Attorney
Chris Redmann, who represents the defendant in the above captioned case, be
allowed to be present at all evaluations and interviews in regards to the pre-
sentence investigation that was ordered in the above captioned case.” The
following day the Department informed counsel that it had canceled the
interview.
[¶4] On May 19, another status conference was held in the criminal action.
During the status conference, defense counsel argued Boldt has the right under
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the Sixth Amendment to the United States Constitution to have counsel
present throughout any evaluation during the presentence investigation. The
next day, the district court issued an order to allow representation during PSI-
related evaluations. The court ordered, “The [Department] shall allow
Attorney Redmann to be present in person and advise the Defendant as
allowed by the United States Constitution and the Constitution of the State of
North Dakota.” The court also ordered the Department to schedule the
evaluation to occur within fourteen days. The Department then filed a petition
for a Writ of Supervision, and we stayed the evaluation.
II
[¶5] The State petitions this Court to exercise its original jurisdiction and
issue a supervisory writ, arguing that the defendant does not have a Sixth
Amendment right to have counsel present during the PSI-related evaluations.
[¶6] Under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04, we may review
a district court decision under our supervisory authority. State ex rel. Madden
v. Rustad, 2012 ND 242, ¶ 5, 823 N.W.2d 767 (citation omitted). “We exercise
our authority to issue supervisory writs rarely and cautiously on a case-by-case
basis and only to rectify errors and prevent injustice in extraordinary cases
when no adequate alternative remedy exists.” Id. “Our authority to issue a
supervisory writ is discretionary.” Id. (citing State v. Paulson, 2001 ND 82, ¶ 6,
625 N.W.2d 528). “We generally will not exercise our supervisory jurisdiction
where the proper remedy is an appeal.” Id.
[¶7] We conclude this is an appropriate case in which to exercise our
supervisory jurisdiction because the State lacks another adequate remedy. The
State has a strictly limited ability to appeal in criminal matters. N.D.C.C. § 29-
28-07. Here, the proper remedy is not an appeal. The State cannot appeal from
the order to allow representation during the PSI-related evaluations. Id.
[¶8] The Department is not a party to this criminal action. In Dickinson
Newspaper, Inc. v. Jorgensen, this Court concluded that the petitioners were
in a position to request this Court to exercise its original jurisdiction because
there was no other remedy available and it was a matter of vital concern to the
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public. 338 N.W.2d 72, 74 (N.D. 1983). We conclude the Department is in a
position to request this Court to exercise its original jurisdiction.
III
[¶9] Rule 32(c)(2), N.D.R.Crim.P, provides that the “defendant’s counsel is
entitled to notice and a reasonable opportunity to attend any interview of the
defendant conducted by parole and probation staff in the course of a
presentence investigation.” The State argues that this rule effectively limits
defense counsel’s presence during the risk assessment to the initial phase
conducted by parole and probation staff. Defense counsel argues that
N.D.R.Crim.P. 32(c)(2) does not exclude the presence of counsel at such
evaluations. The plain language of Rule 32(c)(2) only provides defense counsel
the opportunity to be present at interviews conducted by parole and probation
staff. The psycho-sexual evaluation in this case is to be performed by the
Department and not parole and probation staff. Rule 32(c)(2) does not provide
the district court with the authority to order that defense counsel be allowed
to be present for this evaluation.
[¶10] The risk assessment is defined by statute.
“Risk assessment” means an initial phase with a secondary
process approved by the department of human services for the
evaluation of the likelihood a person that committed an offense
will commit another similar offense. The initial phase is an
assessment tool that is administered by a trained probation
and parole officer. A predetermined score on the initial phase
initiates the secondary process that includes a clinical interview,
psychological testing, and verification through collateral
information or psychophysiological testing, or both. The
department of human services shall perform the secondary process
of the risk assessment.
N.D.C.C. § 12.1-01-04(26). The State argues that the evaluation process to be
conducted by a licensed psychologist is to be approved by the Department and
that the presence of defense counsel throughout the evaluation process would
be inconsistent with the process approved by the Department. In this case, the
Department received a referral from the Department of Corrections and
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Rehabilitation triggering the “secondary process” of a “risk assessment” to be
conducted during a presentence investigation. Section 12.1-01-04(26) gives
responsibility for the secondary process of the risk assessment to the
Department. The district court had no authority under section 12.1-01-04(26),
N.D.C.C., to order the Department to allow defense counsel to be present
during the psycho-sexual evaluation.
IV
[¶11] The State argues that Boldt has no constitutional right to the presence
and advice of counsel during the secondary process of the risk assessment
scheduled to be conducted by a licensed psychologist.
[¶12] “The Sixth Amendment of the United States Constitution, made
applicable to the states through the Fourteenth Amendment, and Article I, § 12
of the North Dakota Constitution guarantee a criminal defendant effective
assistance of counsel.” Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568. The
United States Supreme Court has firmly established that a criminal defendant
is entitled to counsel “at any stage of the prosecution, formal or informal, in
court or out, where counsel’s absence might derogate from the accused’s right
to a fair trial.” United States v. Wade, 388 U.S. 218, 226 (1967). The Sixth
Amendment right to counsel attaches from the beginning of adversarial
proceedings through sentencing. State v. Morales, 2019 ND 206, ¶ 16, 932
N.W.2d 106 (citation omitted).
[¶13] The State concedes that the Sixth Amendment right to counsel requires
defense counsel be given prior notice of the nature and scope of a state-
sponsored psychiatric examination. See Powell v. Texas, 492 U.S. 680, 681
(1989) (per curiam); Estelle v. Smith, 451 U.S. 454, 471 (1981) (citing Powell v.
Alabama, 287 U.S. 45, 69 (1932)). In Estelle, the defendant did not assert, and
the Court did not find, that he had the right to have counsel present during the
psychiatric interview. 451 U.S. at 470, n.14. Other courts have instead
concluded that Estelle stands for the “right to counsel in formulating an
approach to the examination.” State v. Schackart, 858 P.2d 639, 646 (Ariz.
1993); see also State v. Knapp, 330 N.W.2d 242, 244 (Wis. Ct. App. 1983)
(holding Estelle was satisfied when an attorney was given notice and
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opportunity to consult with the defendant prior to the interview); Hughes v.
State, 224 P.3d 515, 524-25 (Idaho Ct. App. 2009) (holding that the Sixth
Amendment right to effective counsel was satisfied by counsel advising
defendant prior to the psycho-sexual evaluation being conducted). We now
conclude that the defendant’s Sixth Amendment right to counsel is satisfied
when defense counsel is given notice and an opportunity to consult with the
defendant prior to the evaluation.
V
[¶14] We conclude that the district court was not required by the Sixth
Amendment and had no other authority to order the Department to allow
defense counsel to be present during the psycho-sexual evaluation. We exercise
our supervisory jurisdiction and vacate those portions of the district court’s
orders which direct the Department to permit Boldt’s counsel to be present and
advise Boldt during that evaluation.
[¶15] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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